GOP leaders ask to intervene in Arizona abortion lawsuit

Top Republicans are asking to defend an abortion law from 2021, in light of Arizona Attorney General Kris Mayes’ unwillingness to do so.

House Speaker Ben Toma and Senate President Warren Petersen filed an appeal Friday to intervene in a lawsuit from 2021 challenging a genetic abnormality ban and a fetal personhood law.

Passed by the Republican-majority legislature two years ago, the law was made up of several parts. It included a provision that criminalized doctors and others who performed or financed abortions while knowing the reason was because of a genetic abnormality. Another section ascribed all of the rights and privileges of a citizen to unborn children at every stage of development — effectively outlawing all abortions and putting doctors at risk of charges of child abuse or endangerment if they provide the procedure in emergency situations.

Arizona abortion providers and pro-abortion groups sued, saying the law was unconstitutionally vague and presented real harm to doctors.

Then-Attorney General Mark Brnovich, a Republican, defended the law in court, but Mayes, the newly elected Democrat, has promised to protect the right to abortion. In an emailed statement to the Arizona Mirror, she reiterated that commitment.

“My office is going to fight for the ability of women to make their own healthcare decisions. It is not the place of the Republican-led legislature to dictate these decisions to women and their doctors,” she said.

That ideological shift prompted GOP leaders to make a bid to take her spot — especially given that both legislators helped pass the laws in 2021. Petersen was a co-sponsor.

“The President and Speaker have a unique interest in defending the constitutionality of laws duly enacted by the Arizona Legislature. Because Attorney General Mayes will not defend the constitutionality of the challenged laws, the existing parties do not adequately represent the Legislative Leaders’ interests,” wrote Kevin Theriot, an attorney for the anti-abortion legal group Alliance Defending Freedom, which represented Toma and Petersen.

The genetic abnormality ban was reinstated late last month, when a federal judge refused to block it, reasoning that the constitutional right to abortion no longer exists after Roe v. Wade was struck down. And while the personhood law is currently held at bay by a ruling from the same judge who said the law is in conflict with the state’s current personhood definition, which appears to exclude fetuses, Alliance Defending Freedom’s senior counsel Mark Lippelmann said litigation is ongoing and both laws are still in play.

That’s why, Lippelmann said, it’s important that Toma and Petersen be allowed to intervene in the case, given that, without them, there would likely be no defense.

“In reality they may be the only ones defending the law, “ he said.